USADA, Golden Boy and Positive Drug Test Management Part One

On October 20, 2012, WBC junior welterweight champion Danny Garcia of Philadelphia address and Puerto Rican heritage knocked out Mexican legend Erik “El terrible” Morales at the Barclay Center in Brooklyn, New York. The fight was the inaugural main event for the exclusive rights relationship between the Barclay’s Center and Golden Boy Promotions. The card was an exciting line-up and in terms of developing a new market from which boxing can grow, a banner day for the sport.

The fight set another precedent. It marked the first time the public knew a fighter was being allowed to compete despite tested positive for a banned substance twice on two separate dates complete with “B” sample confirmations leading up to a televised world title fight.

At the final press conference, Angel Garcia, the father and trainer of Danny, was beside himself. He hurled his anger at Team Morales but never said what it was he was angry about. A confused media stared, recorded and tweeted in wonder. Even Angel’s own son had no idea what was going on.

What Danny Garcia soon learned was that Morales had tested positive on two separate dates, October 3 and October 13, leading up to the October 20 contest. A third urine sample taken a few days before the fight came back negative and yet Morales was still cleared to fight. By who still remains uncertain. The New York State Athletic Commission Executive Director has not gone on record discussing the case nor answered why they allowed the fight to go on just a year after going over Antonio Margarito’s damaged eye with the Hubble Space telescope.

“My dad said ’Look, [Morales] took the test, he failed it,” Danny Garcia told Maxboxing.com. “That’s the whole reason we took the tests or we would have never took the tests. So [my dad and I] said ’We are not fighting tomorrow.’ [Garcia’s Team, which includes Golden Boy Promotions and adviser Al Haymon] said we will leave it to the New York Commission. They said if [Morales] second test [collected October 13] came positive that it was ok and ‘They will take it out of your hands and he won’t fight.’ And the second test came back and they still said ’Ok."

Garcia was shocked at the commission, USADA et al allowing the fight to happen.

“That was the whole reason we did the testing so if someone tests positive for anything we ain’t going to fight,” Danny said. “So when the commission said ’Ok’ I was like ‘Damn, so it don’t even matter. Like . . . testing don’t even matter sometimes.”

After the Friday weigh-in, Morales told RingTV "I just spoke to USADA, which is something that I don’t have to tell you guys, but I’m going to tell you this. I just got a call from USADA, and they said that I don’t have to worry and that everything is okay. Everything is okay. You’re not guilty until we prove that you are guilty, and the commission already has accepted the fight, so the fight is on."

However, according to the Garcias, as late as Saturday morning, the fight, at least to them, was off.

“The fight was cancelled,” Angel Garcia told Maxboxing.com. “Behind the scenes, no one knew what was going down. And then the last week when the urine was clean__”

Garcia explained that while he kept Danny resting and focused on the fight, they had essentially decided not to do the fight even with Morales’ negative test. The decision to fight or not was left to the Garcias by the network and Golden Boy. The morning of the fight Angel met with his wife. The two talked casually, exchanging morning pleasantries.

“She began asking questions about what was going down,” Angel explained. “I explained to her everything step by step. What happened there, [Danny and I] didn’t get the [New York] Athletic [Commission] involved. We didn’t get Golden Boy involved. It was fighter to fighter. So the Athletic Commission could have jumped in and stopped it but they let us make the decision. I went downstairs that morning and talked to Danny’s mom. By the end of the conversation, it was [9 AM EST].”

After hearing all the details, including the two positive tests and the third and final negative test, Garcia’s mother, according to Angel, said "Let him fight.”

“I went upstairs and told him, "Danny, you’re fighting,” said the elder Garcia.

The fight was announced a go and while USADA and its president Travis Tygart were basking in the early media glow of the release of the Lance Armstrong Report, an athlete under their contractual jurisdiction, Erik Morales, was about to fight for a world title having tested positive twice for clenbuterol within seventeen days of the fight.

Later that October 20, 2012 evening, after three one-sided rounds, at 1:23 of the fourth, Danny Garcia knocked out Erik Morales with a brutal left hook fitting of a rugged and brave Philly fighter.

Four months later, after Angel Garcia, his wife and their son had to decide for themselves whether or not to face a fighter who had tested positive two times heading into their world title fight, USADA has finally decided take action against Erik Morales.

On Friday February 8, 2013, USADA sent an email, obtained by Maxboxing.com, regarded Morales’s urine samples #1546299, collected October 3, 2012 and #1546300 collected on October 10, 2012–both labeled “Out of Competition”- were found to be in violation of the World Anti-Agency (WADA) code. The Executive Directors of New Jersey, New York, California and Nevada, as well as Golden Boy Promotions’ David Itskowitch and Julien Sieveking of WADA were all cc’d in the email. A USADA review board has determined that USADA’s adjudication process begin immediately.

“USADA charges you with an anti-doping rule violation for the presence of Clenbuterol in your urine samples,” USADA’s email to Morales states.

“You have agreed to abide by the Code and the Protocol,” the email states, “and that any positive test result(s) from a Sample provided by you would be managed pursuant to the Protocol, which has been previously been provided to you. Accordingly, you are subject to the following sanction for your first anti-doping violation:

· Up to a two (2) year period of ineligibility as described in Article 10.2 of the Code, beginning on the day you accept a sanction, fail to request a hearing or fail to respond, or the date of the hearing in this matter, from participation in any activity or competition organized by or under the auspices of any signatory to the Code or any member of the signatory, including ineligibility from in or coaching in Olympic Pan American, or Paralympic Games Trials, or being a member of any Olympic, Pan American or Paralympic Team.; and

· Disqualification of the competitive results obtained subsequent to October 3, 2012, the date your urine sample #1546299 was collected and, including forfeiture of any medals, points, and prizes consistent with Article 10.1 of the Code.”

The email further states:

“Furthermore if it is determined that you are subject to the application of aggravated circumstances as described in Article 10.6 of the Code, your potential period of ineligibility may be increased up to a four (4) year period of ineligibility.

Please be advised, that as required by every doping case under the Protocol, your doping violation and the resulting sanction will be publicly announced.”

Morales has until 5:00 pm Mountain Time on Monday February 18, 2013 to either accept the sanction in writing via fax or by email or to contest it. According to the email and the WADA Code, Morales has the right to a hearing if he so chooses. Per the Protocol, Morales legally can request a five day extension, the deadline for which is also February 18, 2013.

Morales has stated that he would likely have a farewell fight in his hometown of Tijuana, Mexico sometime in the first quarter of 2013.

USADA’s email concludes, “Except as provided in the Protocol, USADA will not publicly disclose or comment on the specifics of your test results until your case has been resolved. By copy of this letter, USADA is notifying Golden Boy Promotions, WADA and the Athletic Commissions for California, Nevada, New York and New Jersey of your test results and requests that they not comment publicly concerning this information until disclosed as provided in the Protocol. USADA will notify these organizations of the final disposition of your case.”

How was this allowed to happen? How were Erik Morales’ two pre-fight positive drug tests for clenbuterol and what should have been the resulting adjudication process taken out of the hands of the New York State Athletic Commission who was charged with presiding over the fight? Who and what allowed the fight to go on? And who is responsible?

First, let us briefly look at another case of a clenbuterol positive test prior to competition.

Prior to the 2008 Olympics, swimmer Jessica Hardy was notified her “A” sample had tested positive for clenbuterol. What is important to note is that Ms. Hardy was not given the option by USADA to compete in the Olympics following her positive drug test and then enter the adjudication process. She was not offered an opportunity to keep giving samples until one came back negative so as to compete in the Olympics. The bottom line is that Hardy’s days as a competitor were immediately suspended following her positive “A” sample test.

Hardy immediately withdrew from the competition and began the related legal process. She ultimately received a one year suspension. Why was Erik Morales, who agreed to abide to the same WADA code under contractual agreement with USADA, allowed to fight despite his positive tests? And why did the NYSAC allow it?

Perhaps it is found in the fact that in no clause, rule or any other place found in several Master Agreement contracts obtained by Maxboxing.com, between Golden Boy Promotions and the United States Anti-Doping Agency regarding anti-doping testing for their fighters are the words “State Athletic Commission” used. No variation of those words is used. It would appear, after careful perusal of these varied versions of the same Master Agreement, that this alliance between Golden Boy and USADA potentially takes the commission completely out of the loop.

We will explore specifics and the legal questions created by such a possibility in Part Two.